Delhi High Court
Prem Kumar Aggarwal vs Serious Fraud Investigation ... on 23 October, 2019
$~37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23.10.2019
+ BAIL APPLN. 2693/2019
PREM KUMAR AGGARWAL ..... Petitioner
Through Mr. Sidharth Luthra, Sr. Adv.
With Ms. Ranjana Roy, Mr.
P.K.Dubey,Mr. Arshdeep
Singh, Mr.Hitesh Rai, Mr.
Himanshu Gupta, Mr. Manish
Jha and Mr. Avinash Bhatia,
Advs.
versus
SERIOUS FRAUD INVESTIGATION OFFICE
..... Respondent
Through Ms. Maninder Acharya, ASG,
Mr. Anurag Ahluwalia, CGSC
with Mr. Abhigyan Siddhant
and Mr. Viplav Acharya, Advs
for R-1 with Mr. P.C. Maurya
and Mr. Madhur Bajaj, SFIOs
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI,J (Oral)
1. Vide this order, I shall dispose of an application filed by the
petitioner Prem Kumar Aggarwal seeking anticipatory bail in the
event of arrest in Complaint case no. 770/2019, titled SFIO v.
Bhushan steel Ltd. & Ors." Pending in the Court of Ms. Neelam
Singh, Ld. ASJ/Special Judge (Companies Act), Dwarka Courts, New
Delhi for offences under Section 36(C), 89,90,128,129, 229, 447, 448
of the Companies Act, 2013, Sections 209, 211 read with 628 of the
Companies Act, 1956, and sections 409,467,468,471 read with 120-B
of the Indian Penal Code, 1860.
2. Ld. Counsel for the petitioner has prayed for anticipatory bail
on the ground that petitioner is 65 years old. The complaint is
pending in the court of Ms. Neelam Singh, Ld. ASJ/Special Judge
(Companies Act). As stated above, the offences alleged in the said
complaint against the petitioner are under Section 128, 129, 447, 448
of the Companies Act, 2013, Section 209, 211 read with 628 of the
Companies Act, 1956, and Section 467, 468, 471 read with Section
120-B IPC. It is further submitted that petitioner is suffering from
following serious ailments:-
a. Chronic Diabetes,
b. Renal Cell Carcinoma (RCC-Kidney Tumor) - 2010
c. Incision Hernia since 2010
d. Post Right Radical Nephrectomy with Hillar Lymph Node,
Lung Cancer with En-larged Hypervascular Nodes in the
right paratracheal region,
e. High blood Pressure due to which the Applicant is prone to
Nasal bleeding. In March 2017 the applicant suffered to
Nasal Bleeding due to which he admitted to Dr. Gyan
Bhushan Nursing Home, Karnal, Haryana.
f. The Applicant has recently suffered a Heart Attack on
17.05.2019, wherein he has operated in Emergency for
inducting stent to LAD for 2 (two) days with Sir Ganga
Ram Hospital.
3. The petitioner is under continuous medical observation
/treatment and follow ups with Dr. K.K.Sethi at Delhi Heart and
Lungs Institute Super Specialty Hospital, New Delhi. Besides this,
the petitioner in respect of his cancer treatment is undergoing regular
Chemotherapy. The petitioner is praying for bail since the offences
are non-bailable in nature. It is further stated that Designated Court of
Ld. Sessions Court has issued NBWs against the petitioner vide order
dated 14.08.2019 despite the fact that no summons were received by
the petitioner. The petitioner has apprehension of his arrest pursuant
to the issuance of NBWs issued against him and the next date of
hearing is 11.11.2019.
4. Vide orders dated 03.05.2016, 18.01.2018 and 18.01.2019, the
Ministry of Corporate Affairs had ordered an investigation into the
affairs of various companies including BSL, by the Serious Fraud
Investigation Officer. The petitioner had joined the investigation and
after completion of investigation, the complaint was filed in the court
of Ld. ASJ/Special Judge (Companies Act) naming 287 persons as
accused. The petitioner has been named as accused no. 162 and has
been described as whole time Director. The allegations against the
petitioner are that he submitted false documents under his signature
for discounting the LCs to avail illegitimate flow of funds from the
banks which the company M/S BSL was not entitled to and the
petitioner being a Director has failed to discharge his duties provided
under the companies Act.
5. Vide order dated 16.08.2019, Ld. ASJ/Special Judge
(Companies Act) had taken cognizance of the offences mentioned in
the said complaint and directed issuance of summons for the offences
under Section 128, 129, 447, 448 of the Companies Act, 2013, Section
209, 211 read with 628 of the Companies Act, 1956, and Section 467,
468, 471 read with Section 120-B IPC. Ld. ASJ/Special Judge
(Companies Act) had also directed appearance of petitioner for
14.10.2019. The petitioner had, however, gone to his relative's house
at Bahadurgarh, Haryana on 10.10.2019. He had returned in the
evening of 14.10.2019. He was not served with the summons issued
against him directing him to appear before the Ld. ASJ/Special Judge
(Companies Act) on 14.10.2019. One of his colleagues namely Sh.
Ankur Aggarwal had, however, appeared in the court and informed
the petitioner about the issuance of NBWs against him.
6. The petitioner had thereafter engaged a counsel who
downloaded the order from the concerned internet portal of the
District Court which confirmed the issuance of NBWs against him.
Ld. Sr. counsel has submitted that the petitioner was not arrested
during investigation and there is no legal justification for issuance of
NBWs against him. The petitioner has apprehension that he will be
sent to custody upon appearance before the Ld. ASJ/Special Judge
(Companies Act). It is, therefore, submitted that NBWs issued vide
order dated 14.10.2019 against the petitioner is unjustified and
without any basis. The summons were never served upon the
petitioner. Only a submission has been made by SFIO that the
petitioner was aware about the development of the case and
deliberately avoiding his appearance before the Ld. ASJ/Special Judge
(Companies Act) on 14.10.2019. The same is without any basis and no
material was placed before the Ld. ASJ/Special Judge (Companies
Act). Even if Ld. ASJ/Special Judge (Companies Act) was of the
opinion that petitioner was deliberately evading his appearance, the
Ld. ASJ/Special Judge (Companies Act) ought to have issued bailable
warrants in the first instance. Issuance of NBWs by the Ld.
ASJ/Special Judge (Companies Act) is contrary to law laid down by
the Hon'ble High Court. Ld. Counsel for the petitioner has relied
upon "Inder Mohan Goswami & Anr. v State of Uttaranchal &
Ors." reported in (2007) 12 SCC 1. It is further submitted that
investigation in the instant case has already been completed. Since the
petitioner was not arrested during investigation, there is no ground for
the SFIO to oppose the bail or seek custody before the Ld.
ASJ/Special Judge (Companies Act). Ld. Counsel for the petitioner
has also relied upon "Court on its Own Motion v. CBI", reported in
109 (2003) DLT 494 and "Court on its Own Motion v. State",
reported in 243 (2017) DLT 373(DB). It is submitted that petitioner is
aged and needs constant medical support. It is further submitted that
since the investigation is complete and no recovery is to be effected at
the instance of the petitioner, no useful purpose would be served by
sending the petitioner to jail. It is submitted that in similar
circumstances, another Bench of this court has granted relief to
similarly placed co-accused Sh. Brij Bhushan Singal in Bail
Application No. 2454/2019 vide Order dt. 10.10.2019. It is submitted
that there are 287 accused persons and prosecution has relied upon
record running into several thousands of pages. Proceedings in such
cases are likely to take time. The petitioner has never made any
attempt to influence the witnesses, tamper with documentary evidence
or in any other manner, hampered the investigation or judicial process.
He has never evaded the process of law. He undertakes to be bound
by the conditions imposed upon him by the court and he be, therefore,
released in the event of his arrest.
7. It is further argued by Ld. Sr. counsel that twin conditions for
grant of bail described under Section 212(6) of the Companies Act,
2013 are not applicable for the purpose of adjudication of the
anticipatory bail application. The said conditions are only applicable
during regular bail proceedings of accused arrested by the SFIO under
Section 439 Cr.P.C. In this regards, the petitioner has relied upon the
following cases:-
(i) Nikesh Tarachand Saha Vs. Union of India, reported in
(2008) 11 SCC 1 @ para 42;
(ii) Dalip Singh Man and Anr. vs. Niranjan Singh, DOE, GOI,
CRM No. M-28490 of 2015, decided by Punjab & Haryana
High Court (DB) on 01.10.2015 @ Pata 5;
(iii) Arun Sharma vs. Union of India, CRWP No. 971 of 2016,
decided by Punjab & Haryana High Court (DB) on
22.07.2016.
8. It is, therefore, prayed that petitioner be granted anticipatory
bail in the event of his arrest in the complaint case in question pending
before the court of Ld. ASJ/Special Judge (Companies Act).
9. The anticipatory bail application is opposed by Ms. Maninder
Acharya, Ld. ASG for the State on the ground that the allegations
against the petitioner are very serious in nature. A fraud has been
committed to the tune of Rs. 45,818 Crores approximately. A
complaint has been filed against the petitioner for the offences
punishable under Section 128, 129, 447, 448 of the Companies Act,
2013, Section 209, 211 read with 628 of the Companies Act, 1956,
and Section 467, 468, 471 read with Section 120-B IPC. Ld. ASG has
further argued that High Court had granted bail to one co-accused
Nitin Johri. However, the said bail order has been stayed by the
Hon'ble Supreme Court. Ld. ASG has further argued that petitioner is
supposed to approach the Ld. ASJ/Special Judge (Companies Act) for
cancellation of NBWs as well as for grant of bail. All the submissions
made by the Ld. Sr. Counsel before this Court should be made before
the court of Ld. ASJ/Special Judge (Companies Act). She has,
therefore prayed for dismissal of the bail application.
10. I have considered the rival submissions. The allegations
levelled against the petitioner are prima facie serious in nature. The
allegations are that petitioner was one of the signatories of the
financials of 'A-1' company and Director in category 'C' Company.
The details of the same have been described in the summoning order
dated 16.08.2019 of the Ld. ASJ/Special Judge (Companies Act). It is
alleged that petitioner has signed forged letter of credits and other
documents for availing credit facility from the Bank on behalf of A-1
Company. Thus, prima facie there are serious allegations of fraud
committed by the petitioner in conspiracy with other co-accuseds.
Perusal of the ordersheet dated 14.10.2019 of Ld. Special Judge
reveals that some co-accuseds have appeared before the Ld. ASJ/
Special Judge and moved an application for seeking bail. Ld. Counsel
for the FSIO has accepted notice and sought time to file reply to the
said bail application. So far as petitioner P. K. Aggarwal is concerned,
as per report of the Process Server, he was not available at the given
address. Ld. Counsel for the FSIO had submitted that petitioner/
accused was very well aware about the development of the case and
was intentionally avoiding his appearance before the Court. In these
circumstances, NBWs were issued against him.
11. Per contra, ld. Counsel for the petitioner has argued that
summons were not properly served upon the petitioner. According to
the Ld. Counsel, service was to be effected upon some adult male
member of the family of the petitioner. However, in the present case
the service was not affected on any adult male member and in case the
petitioner was not available, the service could have been affected by
affixation as per Section 65 CrPC. Thus, the Ld. ASJ/Special Judge
(Companies Act) has not followed the provisions of CrPC.
12. Perusal of para No. 8 (i) of the petition reveals that Ld. Counsel
for the petitioner was not able to inspect the judicial record. It,
therefore, cannot be said as to what was the report of process serving
agency on the summons issued to the petitioner. Without seeing the
copy of the report on summons, it cannot be said whether petitioner
was properly served or not. This submission is, therefore, made
without seeing the record. In case, the petitioner is correct to the
extent that he was not duly served, the Ld. ASJ/ Special Judge after
considering the submission of Ld. Counsel for petitioner and Ld.
counsel for SFIO and perusal of report on summon can pass the
appropriate order in accordance with law. In these circumstances, it
will be appropriate for the petitioner to approach the Ld. ASJ/ Special
Judge and make all his submissions made herein, before the Ld. Trial
court as well. However, no doubt there is a reasonable apprehension
that before the petitioner is able to approach the Ld. Special Court, he
may be arrested by prosecuting agency in pursuance of NBWs issued
against him. In the opinion of this Court, the petitioner need to be
protected to that extent and it is, therefore, ordered that till next date
of hearing i.e. 11.11.2019, the NBWs issued by Ld. ASJ/Special Judge
be kept in abeyance.
13. Now coming to the question of grant of anticipatory bail,
keeping in mind the serious nature of the offence where there are
grave allegations of fraud involving huge amount of money running in
crores of rupees, no grounds for anticipatory bail to the petitioner are
made out.
14. It is a settled law that Section 438 CrPC being an extraordinary
remedy has to be exercised sparingly and more so in cases of
economic offences as these offences affect the economic fiber of the
society. In "Directorate of Enforcement vs. Ankit Kumar Jain,
1988 (2) SCC 105", the Hon'ble Supreme Court has held that in
economic offences, the accused is not entitled to anticipatory bail. The
Hon'ble Supreme Court in "State of Gujrat vs. Mohanlal Jitamalji
Porwal and Anr., (1987) 2 SCC 364" has held that economic
offenders ruin the economy and has observed as under;
5. .The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of moment upon passions
being aroused. An economic offence is
committed with cool calculation and deliberate
design with an eye on personal profit regardless
of the consequence to the community. A
disregard for the interest of the community can be
manifested only at the cost of forfeiting the trust
and faith of the community in the system to
administer justice in an even-handed manner
without fear of criticism from the quarters which
view white collar crimes with a permissive eye
unmindful of the damage done to the national
economy and national interest..
15. In view of the above law laid down by the Hon'ble Supreme
Court and keeping in mind the facts and circumstances of the case and
serious nature of offence and amount of cheating involved as well as
allegation of forgery, no grounds for anticipatory bail are made out.
The NBWs issued against the petitioner be, however, kept in abeyance
till next date of hearing i.e. 11.11.2019 before the Ld. ASJ/Special
Judge (Companies Act). Let the petitioner appear before the court
concerned and move an application for cancellation of NBWs and
grant of bail which will be considered by Ld. ASJ/Special Judge
uninfluenced by the observations made by this Court.
16. The anticipatory bail application is disposed of accordingly.
BRIJESH SETHI, J
OCTOBER 23, 2019
AA
